On January 7, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) approved as a final rule "Update of Commission's Conciliation Procedures" (known as the "2021 Conciliation Rule") by a 3-2 vote. See 86 Fed. Reg. 2974 (published Jan. 14, 2021). The Conciliation Rule provides procedures for EEOC's investigation of charges alleging violations of the Title VII of the Civil Rights Act of 1964, authorized by 42 U.S.C. § 2000e-5. The 2021 Conciliation Rule required the EEOC to provide information to employers upon initiating the settlement, or "conciliation," process, including a summary of the facts of a case, the identities of witnesses and alleged victims, and the legal basis for a finding that discrimination has occurred. Then-President Trump and his EEOC appointees said the 2021 Conciliation Rule would encourage settlements by allowing employers to weigh the merits of bias complaints early on in the process. However, the 2021 Conciliation Rule was opposed by worker advocates, concerned that informing employers of a discrimination investigation would increase the risk of retaliation against workers who file complaints. The 2021 Conciliation Rule was subsequently repealed pursuant to the Congressional Review Act. See Pub. L. 117-22, 135 Stat. 294. However, for purposes of this memorandum, assume that Congress did NOT pass the joint resolution repealing the 2021 Conciliation Rule. Instead, apply the following fictional facts: Shortly after the EEOC published the 2021 Conciliation Rule, the Sugar Law Center of Detroit filed a lawsuit challenging the EEOC's rule in the United States District Court for the Eastern District of Michigan on behalf of several alleged discrimination victims (Plaintiffs Andrea Anderson et al.) with pending EEOC investigations. Plaintiffs argued that the 2021 Conciliation Rule was inconsistent with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and other statutory authority. Plaintiffs sought an order vacating the 2021 Conciliation Rule under the APA, 5 U.S.C. § 706. The Michigan Chamber of Commerce, representing the interests of employers, intervened to defend the rule. Before the litigation reached the summary judgment stage, a new President was elected. Upon taking office, President Biden directed federal agencies to review regulations concerning the protection of workers that were enacted under the previous Administration. Under President Biden, the EEOC identified the 2021 Conciliation Rule as contrary to statutory policies for worker protection. However, the EEOC did not notice a proposal to rescind the rule. Instead, EEOC motioned the District Court for a remand of the 2021 Conciliation Rule so that the agency could reconsider it, and the EEOC asked the District Court to leave the 2021 Conciliation Rule in effect during that remand. Plaintiffs argued that the District Court should either deny the EEOC's remand motion so that the litigation to invalidate the 2021 Conciliation Rule could proceed, or grant the EEOC's remand request but also vacate the 2021 Conciliation Rule. Plaintiffs argued that keeping the 2021 Conciliation Rule in place during a potentially lengthy remand would Administrative Law Winter 2023 Exam Page 3 of 4 harm Plaintiff Anderson and other discrimination victims and their supporting witnesses with potential retaliation resulting from investigation information. Intervenor-Defendant Chamber of Commerce took no position on the EEOC's motion for remand, but opposed Plaintiffs' request for vacatur, arguing that the District Court lacked the authority to vacate the 2021 Conciliation Rule without first making a merits determination. The District Court granted the EEOC's remand motion and, rejecting Intervenor Defendant's arguments, also granted Plaintiffs' request for vacatur in a short order without an opinion. The District Court's remand order thus vacated the 2021 Conciliation Rule. Intervenor-Defendant Chamber of Commerce appealed the District Court's order vacating the 2021 Conciliation Rule. You are a judicial clerk for Judge Hall, recently appointed to the Sixth Circuit Court of Appeals, and assigned to the panel hearing the appeal of the District Court's order in Anderson v. EEOC and Chamber of Commerce. In advance of oral argument schedule this summer, Judge Hall has asked you for a memorandum addressing the merits of the appeal, anticipating arguments from all parties, suggesting questions for oral argument, and recommending a decision. Note: do not address venue in this memorandum.